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26 nov. 2012

Broken seal leads to a fine of € 38 million for E.ON Energie AG, C-89/11 P

The
European Commission suspecting E.ON Energie AG in an anti-competitive agreement
sent them an inspection in Munchen, which sealed a door at the end of the day in order to
continue in the morning. The seal was measuring 90 mm by 60 mm. In the morning,
the white adhesive, by means of which the seal had been fixed to the substrate,
remained on the latter in the form of “VOID” message about 5 mm high,
distributed over the whole surface of the adhesive label. The seal became
transparent, so that the “VOID” message was visible on the seal (§ 8). Thus, the European Commission presumed that the company people broke the seal in order to enter the room and destroy proofs.

However
the shelf life of the seal itself had been expired, and there was no damage to
the very letters of the seal. Therefore, E.ON Energie asked for a measure of
inquiry to that matter, but the EU General Court denied the motion (§§
109-110). The EU Court of Justice replies that this denial is not a subject to
appeal (§ 115).

The
ECJ held that the fine of € 38 million representing 0.14 % of E.ON Energie’s annual
turnover could not be considered as disproportional due to the need to ensure
deterrent effect. The maximum fine in the case of broking the seal could go up
to 1 % of annual turnover.

As
I already wrote in previous posts, it is sad that the deterrent effect
principle is never applied when the European Commission of the European
Parliament themselves breach EU law and fundamental human rights.